What are the four broad issues for searches and seizures?
- Is a search or seizure governed by 4A?
- If conducted WITH a warrant, does search/seizure satisfies 4A?
- If conducted WITHOUT a warrant, does search/seizure satisfies 4A?
- If search was unconstitutional, to what extent is evidence acquired via the search admissible in court?
What is the Fourth Amendment?
Protection against unwarranted search and seizure by the govt
Threshold S&S question: If the search governed by the 4A?
What are the requirements for the 4th Am to apply?
- Search or seizure was executed by govt agent;
- Search was of an area/item protected by 4A;
- Govt physically intruded on protected area/item OR violated reasonable expectation of privacy; AND
- Person has standing
Who constitutes a government agent?
- Publicly paid police (on or off duty)
- Private citizens only if acting at direction of the police
- Private security guards IF deputized with power to arrest (e.g., campus police at public universities)
- Public school administrators (principals/vice principals) when acting within scope of authority
What are the areas and items protected by the Fourth Amendment against unreasonable S&S? (4)
- Persons (i.e., bodies);
- Houses (incl. hotel rooms) and curtilage (i.e., area adjacent to the house “to which the activity of home life extends,” e.g., backyard, front porch, etc.);
- Papers (e.g., personal correspondence); AND
- Effects (e.g., purses, backpacks, cars).
What is the curtilage?
Area adjacent to the home to which the activity of home life extends
What is NOT protected by the Fourth Amendment?
(Hint: POGOFAP)
(These are items so commonly exposed to thrid parties that they are sufficiently “public” to merit no Fourth Am protection)
POGOFAP – “Public Observation Generally Obliterates Fourth Amendment Protection”
- Physical characteristics (e.g., the sound of your voice or style of your handwriting)
- Odors emanating from your car or luggage
- Garbage left at your curb for collection
- Open fields: anything that can be seen in or across the open fields
- Financial records held by a bank
- Airspace: anything that can be seen below when flying in public airspace
- Pen registers: devices that list the telephone numbers someone has dialed
What are the two tests for physical intrusion on a protected area?
- Trespass test (Govt agent physically intruded on a constitutionally protected area in order to obtain info)
- Privacy test (Agent’s search or seizure in a constitutionally protected area ciolated individual’s reasonable expectation of privacy)
What is the trespass test for physical intrusion? (3)
- Agent physically intruded
- On a constitutionally protected area
- To obtain information
What is the privacy test for physical intrusion?
- Agent search or seizure
- Of constitutionally protected area
- Violated person’s reasonable expectation of privacy
What must D show to satisfy the reasonable expectation prong of the privacy test?
- D has actual OR subjective expectation of privacy in area searched or items seized; AND
- Expectation is one that society recognizes as reasonable
What is the “leading technology” standard? (3)
Search presumptively unreasonable if:
- Search uses device that is not in public use
- To explore details of the home
- That officers could not have known about without physical invasion
(e. g. Police positioned outside a home without a warrant use a termal imaging device to detect “hot spots” inside the home where residents are using lamps to grow pot. Violation of 4A.)
In general, when does a D have standing to challenge a search?
Must be D’s personal privacy rights invaded, not those of a 3d party
In what types of premises/property does D always have standing to challenge a search?
D always has standing to challenge a search when:
- It’s his own premises;
- It’s not his own premises, but he resides there; OR
- Despite neither owning nor residing at the premises, he is an overnight guest there (NOTE: Only applies to areas overnight guests can be expected to access, e.g., living room or kitchen, NOT host’s bedroom!)
In what types of premises/property does D sometimes have standing to challenge a search?
- If D is an overnight guest: He has reasonable expectation of privacy (thus, standing) over areas that overnight guests can be expected to access; AND
- If D owns the property seized: He has standing only if he has a reasonable expectation of privacy in the area from which the property was seized (e.g., A man who hides drugs in his gf’s purse does NOT have a reasonable expectation of privacy)
In what types of premises/property does D NEVER have standing to challenge a search?
- Premises being used solely for business purposes
- Automobiles if D is merely a passenger
NY QUESTION
What is the NY standing exception for passengers in cars?
Passengers in vehicles have standing to challenge possession of weapons, if possession is attributed to them
